A Bit of Honest History Of America --- Episode 3

    Classical Legal Thought in 19th & Early 20th Centuries 

   The Supreme Court of the United States [SCOTUS] , despite its look of somber, black-robed fairness, was doing its bit for the ruling elite. How could it be independent, with its members chosen by the President and ratified by the Senate ? How could it e neutral between rich and poor when its members were often former wealthy lawyers, and almost always came from the upper class ? Early in the nineteenth century the Court laid the legal basis for a nationally regulated economy by establishing federal control over interstate commerce, and the legal basis for corporate capitalism by making the contract sacred.
   In 1895 the Court interpreted the Sherman Act so as to make it harmless. It said a monopoly of sugar refining was a monopoly in manufacturing, not commerce, and so could not be regulated by Congress though the Sherman Act. [ U.S. v. E. C. Knight Co] . The Court also said the Sherman Act could be used against interstate strikes [the railway strike of 1894] because they were in restrain of trade. It also declared unconstitutional a small attempt by Congress to tax high incomes at a higher rate. [Pollock v. Farmers' Loan & Trust Company]. In later years it would refuse to break up the Standard Oil and American Tobacco monopolies, saying the Sherman Act barred only "unreasonable" combinations in restraint of trade. 
   A New York banker toasted the SCOTUS in 1895 : "I give you, gentlemen, the Supreme Court of the United States ---guardian of the dollar, defender of private property, enemy of spoliation, sheet anchor of the Republic." 
   Very soon after the Fourteenth Amendment was ratified, the SCOTUS began to demolish it as a protection for blacks, and to develop it as a protection for corporations. However, in 1877, a SCOTUS decision [ Munn v. Illinois] approved state laws regulating the prices charged to farmers for the use of grain elevators. The grain elevator company argued it was a person being deprived of property, thus violating the Fourteenth Amendment's declaration "nor shall any State deprive any person of life, liberty, or property without due process of law." SCOTUS disagreed, saying that grain elevators were not simply private property but were invested with a "public interest" and so could be regulated. 
   One year after that decision, the American Bar Association, organized by lawyers accustomed to serving the wealthy, began a national campaign of education to reverse the Court decision. Its presidents said, at different times : "If trusts are a defensive weapon of property interests against the communistic trend, they are desirable." And : "Monopoly is often a necessity and an advantage." 
   
   By 1886, they succeeded. State legislatures, under the pressure of aroused farmers, had passed laws to regulate the rates charged farmers by the railroads. SCOTUS that year [ Wabash v. Illinois] said states could not do this, that this was an intrusion on federal power. That year alone, SCOTUS did away with 230 state laws that had been passed to regulate corporations. 
    By this time, SCOTUS had accepted the argument that corporations were "persons" and their money was property protected by the due process clause of the Fourteenth Amendment. Supposedly , the Amendment had been passed to protect Negro rights, but of the Fourteenth Amendment cases brought before SCOTUS between 1890 and 1910, NINETEEN dealt with the Negro, 288 dealt with corporations. 
   The justices of the SCOTUS were not simply interpreters of the Constitution. They were men of certain backgrounds, of certain interests. One of them [ Justice Samuel Miller] had said in 1875 :"It is vain to contend with Judges who have been at the bar the advocates for forty years of railroad companies, and all forms of associated capital . . ." In 1893, SCOTUS Justice David J. Brewer, addressing the New York State Bar Association, said : 

     It is the unvarying law that the wealth of the community will be in the hands of the few . . . The great majority of men are unwilling to endure that long self-denial and saving which makes accumulations possible . . . and hence it always has been, and until human nature is remodeled always will be true, that the wealth of a nation is in the hands of a few, while the many subsist upon the proceeds of their daily toil. 

   This was not just a whim of the 1880s and 1890s---it went back to the Founding Brothers, who had learned their law in the era of Blackstone's Commentaries, which said : "So great is the regard of the law for private property, that it will not authorize the least violation of it ; no, not even for the common good of the whole community." 

        MUCH MORE TO COME.